The dramatic ending of the Seán FitzPatrick trial raises profound questions about how the case was investigated and prosecuted by the Office of the Director of Corporate Enforcement (ODCE), the Garda and the Director of Public Prosecutions. This follows the collapse of the first trial in 2015 after it emerged documents had been shredded by the ODCE's lead investigator, Kevin O'Connell.
After 126 days of the current trial, Judge John Aylmer directed the jury to acquit FitzPatrick who had pleaded not guilty to 27 offences. These included 22 charges of making a misleading, false or deceptive statement to auditors and five charges of furnishing false information between 2002 and 2007 relating to the "warehousing" of personal loans with Irish Nationwide.
O’Connell was the ODCE’s legal adviser but had never previously conducted a serious criminal investigation and wasn’t trained in taking witness statements. He testified to being over- worked and under-resourced and shredded a number of documents in May 2015 during a “panic attack”. He informed the DPP and then sought psychiatric help. Yet it is still not clear what documents he destroyed.
There were many flaws in the case. The court was told that two EY partners were “coached” and their statements contaminated. Issues were raised too around the validity of warrants used by gardaí to search the premises of Anglo and Irish Nationwide; about political interest in the investigation; and around potential conflicts, with some of the lawyers involved in drafting EY witness statements acting for the firm in separate actions being taken by IBRC and the Chartered Accountants Regulatory Board.
In a statement yesterday, the ODCE accepted the judge’s criticisms but said it had undergone significant structural change since. Nonetheless, the extraordinary bumbling of this investigation has caused immeasurable damage to the ODCE’s reputation and highlighted deficiencies in how the fight against white collar crime is resourced here. The public can only watch with dismay.